You sue, you suffer: First Amendment Retaliation

Here’s the story: Art Dowling owns Magic Money in Barberton, Ohio. His business provides a number of gaming machines for customers to play on its premises.

The Barberton police investigate Magic Money and obtain a search warrant. A search ensues, and officers seize 44 gaming machines, $13, 000+ cash, business records, equipment and property. A second warrant follows, which allows the police to peel Dowling’s machines “to obtain mechanical and electronic data and information regarding the manufacture, identification, and use of the machines.”

Dowling’s business begins suffering. So, about a month later, he (and the owner of the video machines) sue the City and some police officers in the state court, “seeking inter alia, declaratory relief as to the validity of their machines, as well as monetary damages and injunctive relief against the Defendants.” Two months later, Dowling and two of his employees are charged with misdemeanor offenses under Ohio’s gambling laws.

Fast forward. Dowling’s charges are dropped. Magic Money’s video machines are returned. But, as alleged in the federal complaint, Dowling and the video machine owners were unable “to restore the operation of their business to its former success.”

Is there a claim? Yes. Two days ago, the district court let Dowling’s First Amendment retaliation claim ride on a 12(b)(6) motion:

Viewed alongside the facts pled in the Amended Complaint, it is clear that Plaintiffs allege that the criminal prosecution commenced by the City of Barberton was carried out in retaliation for Plaintiffs’ filing of the instant action in state court. “[I]t is well established that an act in retaliation for the exercise of a constitutionally protected right is actionable under [42 U.S.C.] Sec. 1983 even if the act, when taken for a different reason, would have been proper.” The Supreme Court has held that the right of access to the courts is protected under the First Amendment right to petition the government for redress of grievances….

To succeed on a First Amendment retaliation claim, a plaintiff must demonstrate: “(1) that she was engaged in a constitutionally protected activity; (2) that the defendant’s adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to the exercise of the plaintiff’s constitutional rights.

With respect to this retaliation claim, the court noted that Dowling (and company) had “alleged that they were engaged in a constitutionally protected activity” by “exercising their First Amendment right of access to the courts by bringing an action against Defendants for declaratory, injunctive, and monetary relief for the seizure of their gamine machines.” Dowling had also “alleged that Defendants formally charged Plaintiff Dowling and two of his employees with two misdemeanor charges. Such action,” the court held, ”if taken for retaliatory purposes, would likely deter a person of ordinary firmness from the exercise of their constitutional rights.” (quotation marks and citations omitted). Finally, Dowling had alleged that “[s]uch formal charges occurred only after Plaintiffs had already sued the Defendants, and took place over five (5) months after the initial seizure of Plaintiffs’ property,” and that filing the charges was “in retaliation of [sic] acts taken by Plaintiffs to seek redress with the Courts, as allowed by the U.S. and Ohio constitution [sic].”

Am I missing something? If the City suspected a violation, wouldn’t it have been easier to simply ask Magic Money how it was operating the game machines and — if incorrectly — to stop it? I do get that undercover/warrant work is necssary if a criminal enterprise is suspected. Still, I don’t get that if a single business is suspected of operating incorrectly, or, as in this case, the owner is not committing a crime in the first place, these enforcement tactics are required. (Yes, I’ve read the tipping point.)

If this molehill becomes a mountain, the City of Barberton’s residents can thank their police & prosecutors for hauling in the dirt.